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NYATHI J
Introduction
1. On 7 February 2025, this Court delivered judgment dismissing the applicant’s
contempt of court application, in which he sought to compel the respondent to
issue his minor daughter, born in Dubai on 16 December 2019, with a South
African passport and unabridged birth certificate.
2. The applicant filed his application for leave to appeal on 27 February 2025. The
grounds of appeal are extensive and traverse the Court’s findings on (a)
contempt; (b) the consequences of the applicant’s deprivation of citizenship; (c)
locus standi in relation to the minor child; and (d) the Court’s reliance on the
pending rescission application.
3. The respondent opposes the application for leave to appeal. The opposing
submissions are premised principally on the contention that the matter has
become moot, owing to the Minister of Home Affairs' decision of 21 November
2024 to deprive the applicant of his South African citizenship in terms of section 8
of the Citizenship Act 88 of 1995. It is common cause that this deprivation has
neither been reviewed nor appealed.
4. The essence of the respondent’s opposition is that the Court correctly found the
contempt application to lack merit and that, given the subsequent deprivation of
the applicant’s citizenship, the appeal would have no practical effect.
The Test for Leave to Appeal
5. Section 17(1) of the Superior Courts Act 10 of 2013 provides that leave to appeal
may only be granted where the Court is of the opinion that:
“(a) the appeal would have a reasonable prospect of success; or
(b) there is some other compelling reason why the appeal should be heard.”
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6. The threshold is intentionally stringent1. The Supreme Court of Appeal has
repeatedly emphasised that leave to appeal should not be granted where the
prospects are remote, or where the appeal would serve no practical purpose.
Key Issues Raised
A. Mootness
7. The respondent argues vigorously that the appeal is moot. It is common cause
that the Minister lawfully deprived the applicant of citizenship with effect from 21
November 2024. Until set aside, the decision remains valid and binding, following
the principle in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222
(SCA) that an administrative act stands until set aside by a court.
8. The respondent argues that because the applicant is no longer a citizen, the
appeal would have no practical effect. Courts do not entertain academic or
hypothetical disputes: JT Publishing (Pty) Ltd v Minister of Safety and Security
1997 (3) SA 514 (CC) at para 15; Radio Pretoria v Chairperson, Independent
Communications Authority of SA 2005 (1) SA 47 (SCA).
9. The applicant submits, however, that while his own citizenship may have been
removed, the consequences for the minor child remain unresolved. It is argued
that the minor child became a South African citizen by operation of law at birth,
as her father was a South African citizen at that time.
10. The applicant also argues that he retains locus standi as the biological father and
legal guardian of the minor child, irrespective of his own citizenship status.
11. The Court notes that the minor child has not been deprived of citizenship under
section 10 of the Citizenship Act, and the Minister has not invoked that provision.
1 Notshokovu v S 2016 (1) SACR 581 (SCA) at para 2; and General Council of the Bar v Jiba and Others 2019 (1) SA
130 (SCA) at para 19.
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12. Nevertheless, the contempt application before this Court concerned whether the
respondent acted in wilful disregard of the order issued by Retief AJ. The
subsequent deprivation of the applicant’s citizenship fundamentally altered the
legal landscape and rendered the coercive element of contempt inappropriate.
That finding remains unaffected by the issues raised regarding the minor child’s
independent rights.
13. The appeal, even if successful, would not alter the fact that the applicant is no
longer a citizen, nor that the original order sought to compel the issuance of
documents dependent on the applicant’s citizenship status. On that basis alone,
the appeal would produce no practical effect, and section 16(2)(a)(i) of the
Superior Courts Act is engaged.
B. The Contempt Finding
13. The applicant argues that the Court erred in accepting the respondent’s
explanation that the matter had “fallen through the cracks”, and that the
respondent failed to rebut the presumption of wilfulness and mala fides.
14. Upon reconsideration, the Court remains satisfied that the presumption was
rebutted based on the totality of the evidence, particularly in light of the pending
rescission application and information placed before Court regarding the
applicant’s citizenship status at the time judgment was delivered.
15. The applicant has not demonstrated any reasonable prospects of success on this
issue.
C. The Minor Child’s Rights
16. Although the applicant’s arguments regarding the minor child’s derivative
citizenship raise complex issues of law that may well warrant judicial examination
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in an appropriately framed proceeding, those questions were not the subject of
the contempt application.
17. The present enquiry is confined to whether the Court erred in dismissing the
contempt application. The broader constitutional and statutory issues relating to
the child’s identity documents are neither dispositive of the contempt inquiry nor
determinative of prospects of success on appeal.
18. These issues may be pursued in properly constituted proceedings, but they do
not ground reasonable prospects of success in an appeal against the contempt
judgment.
Conclusion
19. Having considered all grounds raised and the submissions of both parties, the
Court finds:
• The appeal would not have a reasonable prospect of success;
• The issues raised are, in the main, moot;
• No compelling reason exists to hear the appeal; and
• The stringent test under section 17(1) has not been satisfied.
Order
20. The application for leave to appeal is dismissed.
21. The Applicant is to pay the costs of this application on a party and party scale B.
J.S. NYATHI
Judge of the High Court
6
Gauteng Division, Pretoria
Date of hearing: 03 October 2025
Date of Judgment: 07 April 2026
On behalf of the Applicant: Adv. M.R. Hellens SC
Applicant’s attorneys: Krause Attorneys Inc, Jhb. C/O Jacobson & Levy Inc. Pretoria
On behalf of the Respondent: Adv. N. Cassim SC
With him: Adv. S. Mpakane
Respondent’s attorneys: The State Attorney, Pretoria
Delivery: This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand-
down is deemed to be 07 April 2026.